Freeman and Lazarus: Is the President’s Climate Plan Unconstitutional?

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Experts debate the constitutionality of the president’s climate change plan

Noted constitutional law professor Laurence Tribe ’66 has made headlines with his Congressional testimony that the Environmental Protection Agency’s Clean Power Plan is unconstitutional. Testifying before the Energy and Power subcommittee of the House Energy and Commerce Committee on the EPA’s proposed rule for existing power plants, Tribe said, “In my considered view, EPA is off on a constitutionally reckless mission.” His written testimony is available here and a video of his testimony is here.

Professor Laurence H. Tribe ’66

Two leading Harvard Law professors with expertise in environmental law, administrative law, and Supreme Court environmental litigation, take an opposing view. Jody Freeman, Archibald Cox Professor of Law and director of the Environmental Law Program, and Richard Lazarus 79, Howard and Katherine Aibel Professor of Law, have written a response to his view, which is published in full below.

Is the President’s Climate Plan Unconstitutional?

Professors Jody Freeman LL.M. ’91 S.J.D. ’95 and Richard Lazarus ’79

The Environmental Protection Agency’s proposal to limit carbon pollution from the electricity sector is the centerpiece of the President’s plan to address climate change, and the foundation for U.S. leadership on an international climate agreement. In an effort to kill the rule, the coal industry has shrewdly hired Larry Tribe, our Harvard Law School faculty colleague and perhaps the nation’s most famous constitutional law professor, who is arguing on their behalf that the rule is unconstitutional. Like most proposed rules, the Administration’s climate rule is far from perfect, but sweeping assertions of unconstitutionality are baseless. Were Professor Tribe’s name not attached to them, no one would take them seriously.

EPA’s power plant rule sets carbon intensity targets for each state, which they can achieve using whatever measures they prefer, including by substituting natural gas for coal, using more renewable energy, and investing in energy efficiency. The targets vary in stringency because cutting carbon pollution is harder for some states than others, which EPA took into account by considering each state’s current energy mix. Generally, states that depend heavily on coal have lower targets than states with a cleaner energy supply. Coal-fired plants are the single biggest source of carbon emissions in the economy. They are, on average, 42 years old, and pollute more than newer plants because they are highly inefficient.

Tribe testified in Congress this week, declaring that EPA’s proposal violates the Constitution by taking industry’s private property, trampling on states’ rights and usurping Congress’ power. He will make the same arguments as the coal industry’s counsel in federal court next month. In Tribe’s telling, EPA’s proposal to cut carbon pollution from old power plants by up to 30% by 2030 is an assault on the separation of powers equivalent to President Truman’s seizure of the steel mills during the Korean War and President Lincoln’s suspension of habeas corpus during the Civil War.

This is ridiculous. First, nothing in EPA’s proposal requires states to retire coal plants or dictates their energy mix. In fact, states remain in full command of their energy supply, just as before. Nor does anything in the proposal encroach upon the powers of any other agency, like the Federal Energy Regulatory Commission, which oversees the reliability of the electricity system. Claims to the contrary are simply untrue.

Second, the constitutional arguments are wholly without merit. Tribe argues that EPA’s rule is an unconstitutional “taking” of industry’s private property under the Fifth Amendment because government regulation of power plant pollution has not covered greenhouse gas emissions until now. The clear implication of Tribe’s novel view of the Constitution is that the coal industry, and the power plants that burn their coal, possess an absolute constitutional property right to continue to emit greenhouse gases in perpetuity. No Supreme Court opinion has ever announced such a preposterously extreme proposition of constitutional law. Nor has even one single Justice in more than two centuries of cases endorsed such a reading of the Fifth Amendment.

If Tribe were right, government could never regulate newly discovered air or water pollution, or other new harms, from existing industrial facilities, no matter how dangerous to public health and welfare, as long as the impacts are incremental and cumulative. The harm EPA seeks to address with its power plant rule not only affects future generations, but also current ones already managing the impacts and risks of climate change. Indeed, after an unprecedented and exhaustive scientific review, EPA in 2009 made a formal finding that greenhouse gases already endanger public health and welfare. The D.C. Circuit upheld this finding, and, given a chance to review it, the Supreme Court declined. This is important because it makes it all the more astonishing that Professor Tribe has himself determined that greenhouse gases do not pose the kind of risk that government is entitled to address, unless it is willing to compensate industry for its losses. It is hard to imagine a more industry-friendly and socially destructive principle than this.

Thankfully, this principle has no basis in constitutional law. The Supreme Court has repeatedly made clear that the Fifth Amendment’s Takings Clause does not shield business investments from future regulation, even when that regulation cuts sharply into their profits. The Constitution protects only “reasonable investment backed expectations,” and there is simply no reasonable expectation to profit forever from activities that are proven to harm public health and welfare. Certainly the coal industry uniquely enjoys no special exemption from this fundamental constitutional rule.

Tribe further argues that EPA’s proposal violates federalism principles by encroaching on the states’ traditional powers under the Tenth Amendment. This claim also lacks credibility. The courts have consistently upheld as perfectly constitutional the scheme of “cooperative federalism” in the nation’s pollution laws. This approach requires EPA to set regulatory goals while allowing states to achieve those goals using whichever tools make the most sense for them. States always have the choice to say “no” to this deal, leaving the federal government to regulate without any state input or assistance. Indeed, Senator Mitch McConnell, from the coal state of Kentucky, recently advised States to do just that, acknowledging that states have a choice. EPA has given states maximum flexibility to devise plans to suit their own economic, political and energy needs, and has offered states multiple extensions of deadlines if they need more time. And EPA has announced no plans to punish states using the draconian measures that Tribe claims. Contrary to his colorful suggestion that states face a “gun to the head,” nothing in the proposed climate rule “commandeers” state institutions for federal purposes, which is what the Constitution forbids. If the States choose not to act, then the responsibility falls on the federal government to regulate industry itself.

Finally, Professor Tribe argues that EPA has “flagrantly” violated the Constitution by ignoring clear statutory language, which, on his reading, bars EPA from regulating carbon emissions from power plants. But it is Tribe’s reading that ignores legal text. His argument shrugs off a truly hard legal question, which is what to do when two versions of a law, both passed by the Congress and signed by the President, appear to conflict. In what seems to be a clerical error, made in haste when Congress was amending the air toxics program in 1990, Congress passed two different versions of the provision at issue here, one of which clearly authorizes EPA’s proposal, and one of which may not. Which governs? A close reading of text, legislative history, and context, shows that Congress was trying to prevent duplicative regulation of particular pollutants. It was not seeking to exempt entire categories of industry, like power plants, from regulation under separate Clean Air Act programs, as Tribe claims. The latter approach makes no sense—just because a power plant is regulated for toxic pollution should not exempt it from regulation for other, different pollution. EPA’s proposal does not regulate any pollutant twice and is most consistent with legislative intent, based on the historical record. Professor Tribe’s assertion that EPA has wildly overreached in its reading is convenient for the coal industry, but it is implausible if one understands the Clean Air Act.

So here is the truth, stripped of the exaggerated rhetoric of the coal industry and its counsel. The President’ s proposed climate plan neither unconstitutionally ignores statutory language nor unconstitutionally takes anyone’s property. And certainly not that of the coal industry and coal-fired power plants, which will continue to supply approximately 30% of our electricity even after the rule is fully implemented. Nor is State sovereignty unconstitutionally threatened by the proposed rule. The real threat to State sovereignty is Tribe’s radical reading of the Takings Clause, which would prevent States and the federal government from regulating pollution, like greenhouse gases, that scientists agree pose serious risks to the nation’s public health and welfare.

Does this mean that the President’s climate plan is a legal slam-dunk? Of course not. EPA is interpreting the Clean Air Act in a new way for the first time, and new interpretations always pose risks. But well-established legal precedent says that agencies must have a chance to interpret the statutes lawfully delegated to them by Congress. Whether the agency is right about its authority is normally settled by using the Chevron principle, established by the Supreme Court three decades ago, which asks simply whether the agency’s view of an ambiguous statute is “reasonable.”

We believe EPA has a strong legal basis for its power plant rule, and a good chance of winning the argument in court. Still, we freely acknowledge there are some credible arguments to the contrary. But is the rule unconstitutional? Not even close.

Jody Freeman, a Harvard law professor, served as White House Counselor for Energy and Climate Change in 2009-10. Richard J. Lazarus, a Harvard Law professor, has represented clients in more than 40 Supreme Court cases, including many raising constitutional claims against environmental laws.